{"id":149443,"date":"2009-08-28T00:00:00","date_gmt":"2009-08-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nageshwar-prasad-singh-vs-durga-devi-on-28-august-2009-2"},"modified":"2017-06-06T14:10:20","modified_gmt":"2017-06-06T08:40:20","slug":"nageshwar-prasad-singh-vs-durga-devi-on-28-august-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nageshwar-prasad-singh-vs-durga-devi-on-28-august-2009-2","title":{"rendered":"Nageshwar Prasad Singh vs Durga Devi on 28 August, 2009"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
Nageshwar Prasad Singh vs Durga Devi on 28 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n             HIGH COURT OF CHATTISGARH AT BILASPUR      \n\n\n\n\n                Second Appeal No.603 of 1997\n\n\n\n\n\n                    Nageshwar   Prasad   Singh\n                                           ...Petitioners\n\n\n                           Versus\n\n\n\n                   1.   Durga   Devi\n\n                    2.   State   of   M.P.\n                                         ...Respondents\n\n\n\n                         (Proforma Respondent)\n\n    {Second appeal under Section 100 of the Code of Civil\n                      Procedure, 1908}\n\n\n\n!     Mr. A.K. Prasad, counsel for the appellant\n\n\n^     Mr. D.N. Prajapati, counsel for respondent No.1\n     Mr.    Sushil    Dubey,   Govt.   Advocate    for    the State\/respondent No.2\n\n\n\n\nHonble Mr. T.P. Sharma, J \n\n\n       Dated:28\/08\/2009\n\n\n\n\n:       Judgment\n\n                          JUDGMENT\n<\/pre>\n
              (Delivered on 28th August, 2009)<\/p>\n
1.    This  second appeal under Section 100 of  the  Code  of
\n  Civil  Procedure, 1908 (for short `the Code’)  is  directed
\n  against the judgment & decree dated 6-5-97 passed by the 2nd
\n  Additional District Judge, Ambikapur in Civil Appeal No.2A\/93
\n  affirming the judgment & decree dated 26-8-92 passed by the
\n  Civil  Judge Class-II, Ramanujganj in Civil Suit  No.3A\/86,
\n  whereby learned Civil Judge Class-II has passed the  decree
\n  for possession & permanent injunction in favour of respondent
\n  No.1 herein relating to the suit land.\n<\/p>\n
2.    I  have  heard learned counsel for the parties, perused
\n  the  impugned  judgment & decree and record of  the  Courts
\n  below.\n<\/p>\n
3.     Following  substantial  questions  of  law  have  been
\n  formulated for the decision of this appeal: –\n<\/p>\n
          A.  Whether  on  the findings of Court  below
\n            itself   that   the  plaintiff   is   being
\n            threatened  dis-possession,  a  decree  for
\n            possession could be granted?\n<\/p><\/blockquote>\n
          B.   Whether the lower appellate Court committed an error of
\n            law in refusing to permit the appellant\/ defendant to adduce
\n            additional evidence?\n<\/p><\/blockquote>\n
4.   Brief facts leading to filing of this appeal are that as
\n  per the pleading of respondent No.1 herein\/plaintiff, Khasra
\n  No.4\/33  “d”  0.061  hectares of land situated  at  Village
\n  Aaragahi, Patwari Halka No.34(c), Distt. Sarguja is owned by
\n  respondent  No.1.   She had purchased  the  land  from  one
\n  Vishwanath vide sale deed dated 24-6-83.  One hut was  also
\n  situated over the land and some trees were standing over the
\n  vacant  land.   The  present appellant  who  was  permanent
\n  resident  of  Aurangabad, State of Bihar, came  to  Village
\n  Aaragahi in the year 1983.  The present appellant threatened
\n  respondent  No.1  herein on which  she  filed  a  suit  for
\n  permanent injunction.  During the course of pendency of the
\n  suit,  she was dispossessed by the appellant whereupon  she
\n  amended  the plaint for declaration of title and possession
\n  over the property.  The present appellant has contested the
\n  case and pleaded that he has purchased the land & property in
\n  the  year  1987  from Vishwanath and also  given  the  same
\n  identification which the plaintiff\/respondent No.1 herein has
\n  given  in  her plaint.  Issues were framed on the basis  of
\n  averments and learned trial Judge has decreed the suit  for
\n  declaration,  possession  and  permanent  injunction.   The
\n  present  appellant has preferred appeal and  learned  first
\n  appellate Court has dismissed the appeal with modification of
\n  the judgment & decree relating to valuation of suit house and
\n  payment of court fees.  During the pendency of appeal,  the
\n  present  appellant has filed an application  for  admitting
\n  additional evidence in terms of Order 41 Rule 27 of the Code
\n  which  was dismissed vide order dated 5-1-95.  The  present
\n  appellant  has  not  challenged  the  order  rejecting  the
\n  application  for  admitting  additional  evidence  at   the
\n  appellate stage before appropriate forum.\n<\/p>\n
5.   Learned counsel for the appellant vehemently argued that
\n  the  evidence of respondent No.1 reveals that she was  only
\n  threatened by the appellant for dispossession from the land
\n  and  in  case of threat of possession decree for possession
\n  would  not  be  legally possible.  Learned counsel  further
\n  argued that in order to decide the real controversy, the sale
\n  deed  by  which  the  present appellant has  purchased  the
\n  property is a substantial document and the appellant has not
\n  filed the said document before the trial Court because  his
\n  counsel  has  not  advised him to file the  same,  but  the
\n  appellant  has  filed application for admitting  additional
\n  evidence  under Order 41 Rule 27 of the Code and the  Court
\n  below has illegally dismissed the application.  Although the
\n  appellant  has  not  challenged the  order  dismissing  the
\n  application before any appropriate forum, but has challenged
\n  rejection  of  his  application  for  admitting  additional
\n  evidence by the lower appellate Court in this second appeal.
\n  The present appellant is competent to challenge the dismissal
\n  of the said application on the ground that all interim orders
\n  merge  into final decision and doctrine of merger  will  be
\n  applicable  in  the present appeal.  Learned  counsel  also
\n  argued  that  both  the parties have led evidence  and  the
\n  present appellant has specifically pleaded & adduced evidence
\n  that  he  has  purchased the property.  He has  also  given
\n  description of the property in his written statement.  This
\n  is  not  the case where the present appellant has tried  to
\n  introduce a complete new evidence wholly irrelevant for just
\n  decision of this case.  Learned counsel placed reliance  in
\n  the matter of Eastern Equipment & Sales Limited v. Ing. Yash
\n  Kumar  Khanna1<\/a>  in which the Apex Court has held  that  the
\n  appellate Court is required to take up the appeal along with
\n  the  application for additional evidence.  Learned  counsel
\n  further placed reliance in the matter of State of Rajasthan
\n  v. T.N. Sahani and others2 in which it has been held by the
\n  Apex  Court  that the application for admitting  additional
\n  evidence should be decided along with the appeal considering
\n  the necessity of additional evidence.  Learned counsel also
\n  placed reliance in the matter of Bhagwanji and Kalyanji  v.
\n  Punjabhai Hajabhai Rathod3 in which the Gujarat High  Court
\n  has held that the order rejecting to accept the document is
\n  not  appealable, therefore, it can be challenged before the
\n  appellate Court with help and assistance of Section 105  of
\n  the  Code.  Learned counsel further placed reliance in  the
\n  matter of Achal Misra v. Rama Shanker Singh and others<\/a>4  in
\n  which the Apex Court has held that interlocutory orders may
\n  be challenged in final appeal.  Learned counsel also placed
\n  reliance in the matter of Narayan Prasad Pandey v. Om Prakash
\n  Mahendra5  in which it has been held by the Madhya  Pradesh
\n  High Court that if land is sold to the party, then in absence
\n  of  any ownership or rights upon the trees, presumption  of
\n  transfer of trees standing over the land would be in favour
\n  of the person in whose favour the land was transferred.\n<\/p>\n
6.    On  the other hand, learned counsel for respondent No.1
\n  argued that the appellant has specifically pleaded that  he
\n  has purchased the property from Vishwanath by registered sale
\n  deed  but  he has not filed the document before  the  trial
\n  Court.   The present appellant has tried to file  the  same
\n  before the appellate Court by filing application under Order
\n  41 Rule 27 of the Code in which it has been mentioned that he
\n  was  in  possession of the sale deed, but his Advocate  has
\n  never  advised for filing of the said document  before  the
\n  Court, therefore, he has not produced the document before the
\n  trial  Court.   The present appellant has  preferred  first
\n  appeal before the lower appellate Court on 14-9-92 and  has
\n  filed application for admitting additional evidence on 28-9-
\n  94  after  two years from filing of the appeal.   Even  the
\n  present appellant has not mentioned any ground in the first
\n  appeal  relating to dismissal of application for  admitting
\n  additional evidence except the common ground that the trial
\nCourt  has  erred  in  decreeing the suit.   Learned  counsel
\n  further  argued that respondent No.1 herein has  pleaded  &
\n  proved  her case that during the course of pendency of  the
\n  suit,  the  appellant  herein  has  dispossessed  her   and
\n  therefore, she has amended the plaint, and the Court  below
\n  has rightly decreed the suit for possession and declaration.
\n  Learned counsel also submits that no substantial question of
\n  law  is  involved for just decision of this case.   Learned
\n  counsel placed reliance in the matter of Thiagarajan and Ors.
\n  v.  Sri Venugopalaswamay B. Koil and Ors.6<\/a> in which it  has
\n  been held by the Apex Court that the second appeal shall only
\n  lie on the substantial question of law and re-appreciation of
\n  evidence  is  not  permissible in second  appeal.   Learned
\n  counsel  further  placed  reliance  in  the  matter  of  G.
\n  Mahalingappa v. G.M. Savitha7<\/a> in which the Apex  Court  has
\n  held  that concurrent findings of facts of the courts below
\n  cannot be interfered without insufficient and just reasons.
\n  Learned counsel also placed reliance in the matter of Gurdev
\n  Kaur & Ors. v. Kaki & Ors.8<\/a> in which the Apex Court has held
\n  that concurrent findings of two courts below are not liable
\n  to  be  disturbed without any substantial ground.   Learned
\n  counsel further placed reliance in the matter of Chacko and
\n  Anr. v. Mahadevan9 in which the Apex Court has held that the
\n  appellate Court cannot go into question of facts in  second
\n  appeal.\n<\/p>\n
7.    In  order  to  appreciate the  grounds  raised  by  the
\n  parties,  I have examined the material available on  record
\n  necessary for the decision on the substantial questions  of
\n  law.\n<\/p>\n
8.   The first substantial question of law is the question of
\n  law which does not require any assistance of the materials of
\n  the present case.  Threat for dispossession and dispossession
\n  from  the  property are not one and the  same,  threat  for
\n  dispossession  is  only an attempt for  possession  of  the
\n  property and unless the party is dispossessed, no decree for
\n  possession can legally be passed.  The trial Judge has framed
\n  issue  No.3  that  “whether  the  defendant  is  trying  to
\n  dispossess  the  plaintiff from her house and  plot”.   The
\n  answer to the said issue has been given by the trial Court as
\n  positive.  In para 9 of the trial Court’s judgment, the trial
\n  Judge  has  recorded finding that the appellant herein  has
\n  threatened   respondent  No.1  herein  by  fire   arm   for
\n  dispossessing her from the suit property.  On the basis  of
\n  said  material  the  trial Court  has  granted  decree  for
\n  permanent injunction against the appellant not to enter upon
\nthe  plaintiff’s property, and has also passed a  decree  for
\n  declaration of title over the property and for possession.\n<\/p>\n
9.    Both  the  parties have led evidence in their  support.
\n  Respondent No.1 herein\/plaintiff has specifically deposed in
\n  para 6 of her evidence that the appellant has threatened her
\n  and  he is trying to dispossess her from the suit property.
\n  Her witness Rajender Ram (PW-2) has also deposed in para 2 of
\n  his  evidence that the defendant used to quarrel  with  the
\n  plaintiff  and used to compel her to leave the house.   Per
\n  contra,  the  defendant\/appellant has examined  himself  as
\n  witness  and  has deposed in his evidence  that  he  is  in
\n  possession  of the land purchased from Vishwanath  and  the
\n  plaintiff used to quarrel with him on the ground that she is
\n  owner  of the property.  Defendant witness No.2 Vishwanath,
\n  seller of the property, has deposed that he has sold the land
\n  comprising 15 decimal & 31 decimal area to the defendant in
\n  which  one house & nine trees were standing.  He  has  also
\n  deposed  that  the  appellant herein  is  residing  in  the
\n  aforesaid house and he is in possession of the open land.  He
\n  has admitted in para 13 of his evidence that he has executed
\n  sale  deed in favour of the plaintiff also along  with  the
\n  house.  He has denied the suggestion that he has only  sold
\n  open land to the defendant and has not sold land with house.
\n  Defendant  witness No.3 Suryadev & defendant  witness  No.4
\n  Bandhan Ram have supported the version of the defendant.\n<\/p>\n
10.   In  the present case, both the parties claim that  they
\n  have purchased the land.  Statements of the witnesses of both
\n  the  parties have been recorded between 1988 &  1991.   The
\n  plaintiff has amended his plaint relating to dispossession on
\n  5-4-1989 prior to recording of her evidence, but she has not
\n  deposed  anything  relating to her dispossession  from  the
\n  property.  Learned lower appellate Court has dismissed  the
\n  appeal and modified the decree of the trial Court relating to
\n  valuation & payment of Court fees, but has not recorded any
\n  finding that on what basis the decree for possession has been
\n  passed.\n<\/p>\n
11.   Decree for possession cannot be granted on the basis of
\n  pleading  in  absence of any evidence.  In the  matters  of
\n  Thiagarajan, G. Mahalingappa, Gurdev & Chacko (supra),  the
\n  Apex Court has held that re-appreciation of evidence is not
\n  permissible in second appeal and concurrent findings of fact
\n  of  the  two  Courts  below cannot  be  interfered  without
\n  insufficient and just reasons.\n<\/p>\n
12.   Normally, second appellate Court should be reluctant in
\n  re-appreciation of concurrent findings of fact of  the  two
\n  Courts below, but in the present case without any evidence of
\n  dispossession,  the Court below has passed the  decree  for
\n  possession.  Evidence adduced on behalf of respondent  No.1
\n  and decree for possession granted by the trial Court are self-
\n  contradictory.  The decree of possession is not based on the
\n  evidence of respondent No.1.\n<\/p>\n
13.  Admittedly, at the appellate stage, parties are required
\n  to satisfy the Court that the grounds mentioned in Rule 27 of
\n  Order  41  of  the Code are available in their  favour  for
\n  admitting  additional  evidence  at  the  appellate  stage.
\n  According  to the case of the present appellant,  his  case
\n  falls within the category of Order 41 Rule 27 (1) (aa) of the
\n  Code which reads as follows: –\n<\/p>\n
          “(aa)     the   party  seeking   to   produce
\n             additional   evidence,  establishes   that
\n             notwithstanding   the  exercise   of   due
\n             diligence,  such evidence was  not  within
\n             his  knowledge  or could  not,  after  the
\n             exercise of due diligence, be produced  by
\n             him  at  the time when the decree appealed
\n             against was passed, or”\n<\/p>\n
14.  According to the case of the appellant, he has purchased
\n  the land from one Vishwanath by a registered sale deed and he
\n  was in possession of the registered sale deed, but he has not
\n  filed  the sale deed before the trial Court.  The appellant
\n  has  examined  himself and seller of the  land  Vishwanath.
\n  Respondent No.1 has examined Jairam Tiwari (PW-3)  who  has
\n  admitted the sale transaction by Vishwanath to the defendant.\n<\/p>\n
15.   This is not the case where the appellant\/defendant  has
\n  tried  to  introduce entirely a new evidence or  irrelevant
\n  evidence.  He has applied before the lower appellate  Court
\n  for admitting additional evidence of the sale deed which he
\n  has not filed before the trial Court on the basis that it was
\n  not  advised  by  his counsel.  It is a  matter  of  common
\n  knowledge  that  when the case is represented  by  counsel,
\n  virtually  the  case  is entrusted to the  counsel  by  the
\n  parties.  Parties are not acquainted with law and procedure,
\n  therefore, they blindly rely on their counsel.  If counsel of
\n  the appellant would have advised the appellant for filing of
\n  a document, then there was no occasion for the appellant to
\n  hide or conceal the said document.  Although at the appellate
\n  stage  the appellant has not given the details and  has  in
\n  brief manner shown the cause for non-filing of document, both
\n  the  parties  have  substantially admitted  the  sale  deed
\n  executed  by  Vishwanath to both the parties.  Evidence  of
\n  Vishwanath reveals that he has not sold the same property to
\n  the plaintiff & the defendant, but has sold one portion  to
\n  the plaintiff and another portion to the defendant, and the
\n  land is adjoining, therefore, for substantial decision of the
\n  case it requires local inspection by issuance of Commission.\n<\/p>\n
16.  For final disposal of the dispute, the present sale deed
\n  containing description of property of the appellant\/defendant
\n  was necessary and it ought to have been admitted by the lower
\n  appellate Court at the time of final disposal of the appeal.
\n  As held by the Apex Court in the matters of State & Eastern
\n  Equipment  (supra), application for admitting or  rejecting
\n  additional evidence should be decided at the time of  final
\n  disposal of the appeal.  Learned lower appellate Court  has
\n  committed  illegality  by  deciding  the  application   for
\n  admitting additional evidence before final decision in  the
\n  appeal.   The  appellant has not challenged  the  order  of
\n  dismissal of his application by the lower appellate  Court.
\n  As  held  by the Apex Court in the matter of Achal (supra),
\n  interim order can be challenged in terms of Section 105  of
\n  the Code by taking ground in the appeal.\n<\/p>\n
17.    For  the  foregoing  reasons,  the  first  substantial
\n  question of law formulated for the decision of this appeal is
\n  decided as negative and it is held that in the present case,
\n  decree  for possession in favour of respondent No.1 is  not
\n  sustainable.  Second substantial question of law is decided
\n  as positive.\n<\/p>\n
18.   On  the  basis of findings on the aforesaid substantial
\n  questions of law, the appeal is allowed.  Judgment & decree
\n  of both the Courts below are hereby set aside.  The suit is
\n  remitted back to the Court of first instance i.e. Civil Judge
\n  Class-II,  Ramanujganj.   The trial  Court  should  provide
\n  opportunity of leading evidence on the basis of  sale  deed
\n  filed  on  behalf of the appellant and on the  question  of
\n  dispossession to the parties.\n<\/p>\n
19.   Parties  are at liberty to file appropriate application
\n  for appointment of Commissioner for local inspection and if
\n  such application is filed, the trial Court shall decide the
\n  same  in  accordance with law and pass  judgment  &  decree
\n  afresh.  No order as to costs.\n<\/p>\n
20.  Advocate fees as per schedule.\n<\/p>\n
21.  Decree be drawn up accordingly.\n<\/p>\n
                                                    J U D G E<\/p>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court Nageshwar Prasad Singh vs Durga Devi on 28 August, 2009 HIGH COURT OF CHATTISGARH AT BILASPUR Second Appeal No.603 of 1997 Nageshwar Prasad Singh …Petitioners Versus 1. Durga Devi 2. State of M.P. …Respondents (Proforma Respondent) {Second appeal under Section 100 of the Code of Civil Procedure, 1908} ! Mr. A.K. Prasad, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-149443","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\nNageshwar Prasad Singh vs Durga Devi on 28 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nageshwar-prasad-singh-vs-durga-devi-on-28-august-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nageshwar Prasad Singh vs Durga Devi on 28 August, 2009 - 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